Dark v. State

Cite as 2017 Ark. App. 570

ARKANSAS COURT OF APPEALS
DIVISION II
No. CR-16-372

Opinion Delivered: November 1, 2017
ROBERT THOMAS DARK
APPELLANT
APPEAL FROM THE GARLAND
V. COUNTY CIRCUIT COURT
[NO. 26CR-14-694]
STATE OF ARKANSAS
APPELLEE
HONORABLE MARCIA R.
HEARNSBERGER, JUDGE

AFFIRMED

BART F. VIRDEN, Judge

Appellant Robert Thomas Dark was convicted by a Garland County jury of

possession of a controlled substance and sentenced as a habitual offender to fifteen years’

imprisonment and ordered to pay a $10,000 fine. 1 He raises four points on appeal: (1) the

State failed to prove that he possessed a “useable” amount of a controlled substance, (2) the

trial court abused its discretion using its local rule to cut off plea negotiations, (3) the trial

court erred in denying his motion for a continuance and “in coercing him to accept

appointed counsel,” and (4) the trial court erred by failing to order a fitness-to-proceed

examination. We affirm.

1
In Dark v. State, 2017 Ark. App. 3, we denied counsel’s motion to withdraw and
ordered rebriefing. The case is back before us as a merit appeal.
 Cite as 2017 Ark. App. 570

I. Trial Testimony – December 7, 2015

Officer Brent Scrimshire with the Hot Springs Police Department testified that he

assisted on a stolen-vehicle report and identified Dark as a passenger in that vehicle. An

ACIC (Arkansas Crime Information Center) check revealed that Dark had a warrant.

Officer Scrimshire patted him down for weapons and found none. The officer then asked

Dark whether he had anything else on him, and Dark said that he had a small baggie in his

pocket. The baggie contained a crystal-like substance, which field tested positive for

methamphetamine.

Nick Dawson, a drug chemist at the Arkansas State Crime Lab, testified that the test

sample’s total net weight was .3541 grams, and he confirmed that it was methamphetamine

and dimethyl sulfone.

II. Discussion

A. Sufficiency of the Evidence

Arkansas Code Annotated section 5-64-419(a) (Repl. 2016) provides that, except as

provided by this chapter, it is unlawful for a person to possess a controlled substance. A

person who violates this section with respect to a Schedule I or Schedule II controlled

substance that is methamphetamine or cocaine with an aggregate weight, including an

adulterant or diluent, of less than two grams upon conviction is guilty of a Class D felony.

Ark. Code Ann. § 5-64-419(b)(1)(A).

Dark argues that, because no test was performed to determine what percentage of

the sample weighing .3541 grams was methamphetamine, as opposed to the cutting agent,

the State failed to prove that he possessed a useable amount of methamphetamine. Dark

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relies on Harbison v. State, 302 Ark. 315, 790 S.W.2d 146 (1990), in which our supreme

court reversed the appellant’s possession-of-cocaine conviction because a bottle found in his

possession contained “less than a useable amount of cocaine.”

Arkansas Rule of Criminal Procedure 33.1(a) provides that a motion for directed

verdict in a jury trial must be made at the close of the State’s evidence and at the close of all

the evidence, and it must specify the respect in which the evidence is deficient. Campbell v.

State, 2017 Ark. App. 59, 512 S.W.3d 663. After the State rested in this case, the trial court

asked defense counsel whether he had any motions to make and was told, “No, I don’t

believe the record supports any motions for directed verdict or otherwise.” Because Dark

made no directed-verdict motion below, his challenge to the sufficiency of the evidence is

not preserved for review. Swanigan v. State, 2016 Ark. App. 15.

B. “Local Rule”

Initially, the State offered Dark three years in exchange for his guilty plea. He rejected

that offer. Later, the State offered Dark ten years, but he rejected that offer as well. At a

pretrial hearing on November 18, 2015, the trial court said, “There will be no other plea

offers after today.” Dark said that he wished to plead guilty and completed the necessary

paperwork; however, Dark ultimately said that he would plead not guilty.

On December 7, 2015, the day of trial, Dark asked the trial court in chambers

whether DCC (Department of Community Correction) was “off the table.” Defense

counsel referred to the judge’s “policies” and how they were to be followed regarding the

“cut-off point” with plea negotiations. Dark explained that he had gotten “shaken” and

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“rattled” and, “out of [his] panic,” had said, “Not guilty” at the pretrial hearing on

November 18.

Dark argues on appeal that the trial court’s “local rule” regarding plea negotiations is

the type of rule abolished by the Arkansas Supreme Court’s per curiam decision dated

December 21, 1987. In re Changes to the Ark. Rules of Civil Procedure, 294 Ark. 664, 742

S.W.2d 551 (1987) (per curiam). Although Dark claims that he suffered prejudice by the

trial court’s “refusal to allow a plea bargain,” the facts do not support that assertion.

Assuming this was a local rule, as opposed to the trial court’s simple exercise of

control over its courtroom and docket, the judge considered paperwork handed to her by

defense counsel on the day of trial indicating that Dark wished to admit to the charge and

to his habitual-offender status. After some colloquy, the judge said, “I’ve asked you this

question, now this is the third time I’ve asked you the question and I won’t ask it again. Do

you wish to plead guilty?” Dark responded, “No, I don’t.” Dark cannot demonstrate

prejudice because the trial court considered plea negotiations right up to the start of the

trial, but Dark refused the last-minute plea offer and chose to go to trial. We find no

reversible error.

C. Continuance and Coercion

The refusal to grant a continuance in order for the defendant to change attorneys

rests within the sound discretion of the trial court. Alexander v. State, 55 Ark. App. 148, 934

S.W.2d 927 (1996). Moreover, the right to counsel of one’s choice is not absolute; if change

of counsel would require postponement of trial because of inadequate time for a new

attorney to properly prepare a defendant’s case, the court may consider, in granting or

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denying the change, such factors as the reasons for the change, whether other counsel has

already been identified, whether the defendant acted diligently in seeking the change, and

whether the denial is likely to result in any prejudice to the defendant. Id. On appeal, we

review the denial of a motion for continuance under an abuse-of-discretion standard. Creed

v. State, 372 Ark. 221, 273 S.W.3d 494 (2008). An appellant must demonstrate not only

that the trial court abused its discretion in deciding the motion but also that the ruling

resulted in prejudice amounting to a denial of justice. Id.

Dark argues that the trial court summarily denied his motion for a continuance

without any consideration of the relevant factors. He contends that he was thus given no

opportunity to articulate the reasons a continuance was warranted. Dark further argues that,

despite his insistence on representing himself, the trial court “coerced [him] into continued

representation by his trial counsel.”

On the morning of trial, defense counsel informed the trial court that Dark wished

to discharge him and represent himself. Dark said, “I would beg for the Court’s mercy on

a continuance since I am—” The trial judge said, “That’s denied. We’re not going to

continue this case.”

COURT: Okay. So we’re going to go out there. Mr. Fraiser is going to represent
you. You’re going to talk to him and tell him what you want, what
you want the jury to know, what you want the jury to see, and we’re
gonna get through this trial. Do you understand that?

DARK: So I can’t represent myself?

COURT: You can represent yourself through your attorney. You feel confident
to represent yourself? To stand up and go through this trial without an
attorney and face a jury that can give you fifteen years in the
Department of Correction? That’s what you want to do?

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DARK: You know what, Ma’am?

COURT: Yes or no?

DARK: No, I don’t want him to represent me. I would love to have a different
counsel.

COURT: You don’t get to pick and choose your counsel, Mr. Dark.

DARK: I know, yes, ma’am.

COURT: That’s not the way this works. You don’t get to choose, unless you
hire your counsel, you don’t get to choose who is your counsel.

DARK: If I had a little time I can do that.

COURT: Well, you’ve had time. We’ve already been through this. Today’s been
the trial date set since July 21st. And you were out most of that time—
out of jail. You’ve had time to get an attorney, you didn’t get an
attorney. You asked me to appoint the Public Defender. I did that and
now you don’t want him because we’re sitting here ready to go to trial
in a few minutes.

DARK: I would have let go of him earlier, Ms. Hearnsberger, but—

COURT: But you didn’t. But you didn’t.

DARK: No, I was afraid to let him go.

COURT: But you didn’t. You didn’t, Mr. Dark.

DARK: That’s why I waited to right here and right now to because I thought
that he would—

COURT: You’ve been to Court June 16th, July 21st, September 15th, October
13th, November 18th, and today. You’ve had all those opportunities[.]
....

COURT: Well, you need to decide because we’re about to go out there and
you’re either going to sit at that table by yourself and try a case which
you’ve never, ever, ever done and given up the expertise of a fine
lawyer or you’re going to have a fine lawyer represent you. That’s your
decision. I’m not gonna change it for you.

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And when the Court of Appeals looks at this they’re gonna know that
we had a long conversation about this and that you chose to do this.
....

DARK: I tell you what, Ms. Hearnsberger, I’ve been seeing you for District
Court for a long time. You’ve seen me many, many, many times,
unfortunately, and I’m sorry. But since you’re telling me this, I’m
going to be moved to go ahead and I’m going to abide by what you’re
saying, but I’m gonna tell you it’s against everything in my body that’s
telling me absolutely don’t.

Dark was not diligent in seeking a change of attorneys. He admitted that he had

waited until the last minute to mention the possibility of changing attorneys because he was

“afraid to let go” of defense counsel. Dark had no other attorney in mind to represent him.

Further, Dark cannot show that the trial court “coerced” him into accepting current defense

counsel. Coercion is defined as compulsion of a free agent by physical, moral, or economic

force or threat of physical force. Black’s Law Dictionary 315 (10th ed. 2014). Dark ultimately

accepted defense counsel’s representation based on his respect for the judge’s opinion on

the matter, not because he had been forced or threatened. Dark waived his right to self-

representation. We cannot say that the trial court abused its discretion in denying a

continuance and find no prejudicial error in Dark’s acceptance of appointed counsel’s

representation.

D. Fitness-to-Proceed Examination

Arkansas Code Annotated section 5-2-305 (Supp. 2015) 2 provided the following:

(a)(1) Subject to the provisions of §§ 5-2-304 and 5-2-311, the court shall
immediately suspend any further proceedings in a prosecution if

(A)(i) A defendant charged in circuit court files notice that he or she intends
to rely upon the defense of mental disease or defect.
2
The statute was repealed, effective August 1, 2017.
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(ii) After the notice of intent to raise the defense of not guilty for reason of
mental disease or defect is filed, any party may petition the court for a criminal
responsibility examination and opinion . . . ; or

(B)(i) Any party or the court raises the issue of the defendant’s fitness to
proceed.

(ii) The court shall order a fitness to proceed examination if it finds there is a
reasonable suspicion that a defendant is not fit to proceed.

(2)(A) The fitness to proceed examination, and the criminal responsibility
examination and request for an opinion on the defendant’s criminal responsibility,
are two distinctly different examinations.

Dark argues that a fitness-to-proceed examination was warranted because he himself

raised his longstanding psychiatric diagnosis and disability and that the in-chambers

discussions put the trial court on notice of his psychiatric issues. He contends that, instead

of getting any type of medical input on his mental status, the trial court allowed defense

counsel to rebut his (Dark’s) statements and contentions.

The following is a colloquy from the in-chambers discussion in which Dark raised

the topic of his mental status, and it also ties in with the previous point “C” on appeal:

DARK: My decision is that I’m gonna be unprepared and I’m gonna represent
myself. And it’s only because after many, many meetings with Mr.
Fraiser—many, many meetings and many, many prayers—is that I’ve
come to the conclusion that I can’t trust him.

COURT: Can you tell me why?

DARK: I asked him a long time ago—I’m bipolar, and I wanted my medical
records introduced into this case. . . . My medical records—I was in a
psych ward right before when I left Covenant and right before I got
arrested this time and I’ve been in and out of psych wards all my life
and for the last ten years I figured that, you know, that’s very important
for the jurors to know. Mr. Fraiser says that he thinks that I’m not
bipolar, that I was drug induced, but my bipolarism isn’t drug induced.
I asked him is he a doctor, which he said he wasn’t. So this is the
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reason—one of the many reasons—and that would be my main reason
to let go of Mr. Fraiser. Beside him cussing me on many occasions like
a retarded stepchild. That’s another reason.
....

COURT: Okay, so as far as that goes, then, where are we on the mental health
issue?

DARK: I recently went to college. I had to get my records—my medical
records—so I reviewed them recently and I believe that they’re
quite—that they have validity in this case. I really believe that.

COURT: What kind of medical records are you talking about?

DARK: I’m talking about from all the way back when I was in rehab and seeing
a psychiatrist at a young age. And I’ve been getting a check for twenty-
two years, Ms. Hearnsberger. I mean the doctor, he just told me that
I’m bipolar. That’s why I know. I mean this is why I get a check.
....

FRAISER: So as far as this bipolar claim, mental health claim, how does that—
let’s just assume that it does apply, that he is bipolar—how does that
raise to any defense under those fact circumstances?

COURT: And I’m sure you’ve discussed that with your attorney.

DARK: No, I haven’t.

FRAISER: Ad nauseam.

COURT: Well do you understand that?

DARK: I understand that I’ve read my records about who I am and as a
bipolar—

COURT: Do you understand what Mr. Fraiser just said?

DARK: I don’t know if I quite understand what he’s saying. He’s saying it has
nothing to do with my case, I guess?

COURT: He’s saying that it’s not a defense to your case.

DARK: I disagree with that.

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COURT: Are you a lawyer?

DARK: No, but I mean isn’t it validity that I’m—you know, I went and tried
to seek help on all these different things. Doesn’t that count that I’ve
tried to help myself? I go to these places to help myself. Isn’t that
something that needs to be brought out?

Criminal defendants are presumed to be competent to stand trial, and they have the

burden of proving otherwise. Thessing v. State, 365 Ark. 384, 230 S.W.3d 526 (2006). The

context of the colloquy demonstrates that Dark raised his mental status in the context of

why he wanted to fire defense counsel, which was because defense counsel would not

investigate his mental-health background for use as a defense to the possession-of-

methamphetamine charge. The statute says a criminal-responsibility exam and a fitness-to-

proceed exam are distinctly different. Dark perhaps argues fitness to proceed here because

he did not file notice of his intent to use mental defect as a defense at trial. Although Dark

asserted that he had a long-standing mental disability, there is no indication from the record

that Dark did anything that would have caused the trial court to reasonably suspect that

Dark was not fit to proceed. The colloquies show that Dark appeared to understand the

charges against him and the proceedings and that Dark seemed capable of assisting counsel

in preparation of his defense.

Dark also wants this court to consider the recent holding in McWilliams v. Dunn, 582

U.S. ___ (June 19, 2017), where the United States Supreme Court determined that

McWilliams did not receive the minimum assistance required by Ake v. Oklahoma, 470 U.S.

68 (1985). Ake held that, when a defendant demonstrates to the trial court that his or her

sanity at the time of the offense is to be a significant factor at trial, the State must, at a

minimum, assure the defendant access to a competent psychiatrist who will conduct an
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appropriate examination and assist in evaluation, preparation, and presentation of the

defense.

Dark failed to make the threshold showing per McWilliams, supra. He did not

demonstrate that his sanity at the time of the offense was going to be a significant factor at

trial. From the colloquy, it is clear that Dark wanted the jury to hear about his mental-health

background because he wanted jurors to see that he had sought help over the years. Dark

did not even suggest that his mental state played a role in his decision to possess

methamphetamine. We find no reversible error on this point.

Affirmed.

GLOVER and MURPHY, JJ., agree.

Amos J. Richards, for appellant.

Leslie Rutledge, Att’y Gen., by: Jake H. Jones, Ass’t Att’y Gen., for appellee.

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